Open Access Research Article
Case comment Union of India v K. A Najeeb (2021)3SCC713 (By-Abhilasha Singh)
Published Paper
Article Details
Case
comment
Union of India v K. A Najeeb
(2021)3SCC713
Authored by-Abhilasha Singh
Bench:
Justice N.V Ramanna
Justice Surya Kanta
Justice Anirudha Bose
Introduction:
It is said that bail is the rule and
jail is the exception, however when it comes to the preventive detention laws,
it is not the case, bail is rarity, and really difficult to procure.
This case law deals with the
preventive detention law of UAPA(Unlawful Activities Prevention Act).It is one of those laws which
affect the liberty of an individual, as there are negligible chances of securing bail.
This is not the only problem
associated with this law, the conviction rate is also not very satisfying[1].
The apex court in this case dealt with the issues raised under various
provisions of UAPA.
Historical
Background And Facts Of The Case
UAPA has been enacted in 1967, the
political situation of 1962 became one of the prime reasons for its adoption,
the main objective of this law was penalisation of unlawful activities and
maintenance of security in the country. "Unlawful activities” are defined
in this act as “any action taken by such individual or association (whether by
committing an act or bywords, either spoken or written, or by signs or by visible
representation or otherwise):
(i) which is intended or supports any
claim to bring about on any ground whatsoever the cession of a part of the
territory of India from the Union or which incites any individuals to bring
about such cession or secession;
(ii) which disclaims or questions the
sovereignty of India in respect of any part of the territory of India.
(iii) which disrupts or is intended
to disrupt the integrity of India”[2].
Along with this provision it is the
section 43D (5), which makes getting bail really difficult[3].
It lays down that “No person accused
of an offence punishable under Chapters IV and VI of this Act shall, if in
custody, be released on bail or on his own bond unless the Public Prosecutor
has been given an opportunity of being heard on the application for such
release”[4].
In this context, the facts of the case are as
follows, K A Najeeb (the respondent), along with other accused was an active
member of Popular Front of India, an extremist organisation, He was charged for
attacking Professor T.J. Joseph of Newman College, Thodupuzha. The respondent
was arrested under the provisions of UAPA which included Section 16, 18, 18B,
19, 20 of the said act, along with section 153A, 201, 202,212 of IPC(1860). The
respondent was arrested on 10.04.2015, Thereafter the respondent applied for
bail before the special court and the high court for as many as 6 times
(2015-2019), but the bail was declined owing to the bar mentioned in section
43D (5) of UAPA.
In may 2019, the respondent applied
again for bail, and the High court through its impugned order affirmed the
release of the respondent on bail citing the delay caused in the initiation of
trial as the primary reason, against this order the National Investigation
Agency appealed before the apex court.
Issues involved:
1.
Can
violation of Article 21 of the constitution, bring down the rigours of section
43D (5) of UAPA.
2.
Whether
it is mandatory on the part of the judges to deny bail, where there is a prima
facie belief of accused crime.
3.
Can
the court’s decision of granting bail under this act be challenged on some
specific grounds.[5]
Contentions
Of The Parties:
The appellant:
It was contended by the party that
the suspect was guilty prima facie, and there are numerous reasons to not to
set him free, the counsel relied on the judgement of National Investigation
Agency v Zahoor Ahmed Watali[6],
where the bail was refused owing to the special nature of the 1967 act, and
courts have to mandatorily deny bail in such circumstances.
The respondent:
The counsel for the respondent relied
on the fact that, many co accused had been released, and if few were convicted
as well, there sentences amounted to 8 years, However the respondent had
already been incarcerated for more than five years. The counsel referred to the
cases of Shaheen welfare association v Union of India[7],
and Hussain V Union of India[8]
were it was relied that the delay in granting bail[9],
and disposal of a case, causes gross injustice to a party, it also violates the
right to speedy trial under Article 21 of the Indian Constitution.
Judgement
The Apex Court upheld the decision of
High Court, by emphasizing individual’s right under Article 21, the court
quoted shaheen welfare Case[10]
as
“No one can justify gross delay in
disposal of cases when undertrials perforce remain in jail, giving rise to
possible situations that may justify invocation of Article 21.”
The
court also referred to the case of Rohidas Shankar Patil vs Smt. Mayra
Gilbert Mendosa[11],
where it was mentioned that the rigorous conditions in such special enactments
are
based on the touchstone of speedy trial, failing to which will attract the
protection of Article 21.
The court said
“Owing
to the practicalities of real life where to secure an effective trial and to
ameliorate the risk to society in case a potential criminal is left at large
pending trial, Courts are tasked with deciding whether an individual ought to
be released pending trial or not. Once it is obvious that a timely trial would
not be possible and the accused has suffered incarceration for a significant
period of time, Courts would ordinarily be obligated to enlarge them on bail.”[12]
It further added that
The
statutory restrictions like Section 43D (5) of 1967
act per se does not take away the ability of Constitutional Courts to grant
bail on grounds of violation of Part III of the Constitution.
Analysis
The Supreme Court in the judgement of
Union of India V KA Najeeb, granted bail to the accused charged under
Unlawful Activities Prevention Act, 1967, which is a stringent anti-terror law.
The Act was amended in 2008 after the
Mumbai blast case, and in 2012 and 2019. The recent amendments have brought
under the ambit of UAPA wider coverage of the Act, and designation of an
individual as a terrorist, not only this but it also curtails judicial
discretion in the granting of bail[13].
The provisions of these legislations
have a direct bearing upon individual ‘s liberty and other rights associated to
his life, considering this, the court ‘s decision of bringing a balance between
security concerns of the state and Individual liberty is a welcoming step, it
is also a ray of hope.[14]
for various individuals who are awaiting trial under this act.
This judgement can be a long-standing
precedent with regard to the case of undertrial prisoners, whose number is
growing day by day, many of these prisoners already spent more than half of the
punishment prescribed for the offence, this will serve as a strong reference
for upholding of their fundamental rights[15]
even in the cases registered under legislations like UAPA.
Conclusion
There is no doubt that law like UAPA
has been brought to meet conditions which are extraordinary in nature and
directly affect the security of country, however data shows that in almost
ninety percent of cases bail is denied[16],
and individuals remain in prison for a considerable period of time so the rule
of bail is the rule and jail is the exception becomes exception in
itself, in other words it is not applicable in anti-terror laws like UAPA. In the recent developments, it has been seen
that the apex court is taking a progressive stance with respect to granting
bail and the case of Union of India V K.A. Najeeb aided in changing the bail
jurisprudence under UAPA.
Article Information
Case comment Union of India v K. A Najeeb (2021)3SCC713 (By-Abhilasha Singh)
Authors: Abhilasha Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/09/21
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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